Appearance+JIDA - civil procedure code I lecture notes PDF

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AppearanceWhen the defendant is served with writ, he may enter an appearance and defend the action by himself or his solicitor. (Appearance only to writ but not OS- O12r12) O12 r1 ROC: when D enter into appearance means he want to defend himself Type of appearance Conditional appearance/ uncondition...

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Appearance When the defendant is served with writ, he may enter an appearance and defend the action by himself or his solicitor. (Appearance only to writ but not OS- O12r12) O12 r1 ROC: when D enter into appearance means he want to defend himself Type of appearance Conditional appearance/ unconditional appearance Unconditional appearance is entered when there is no objection OLD O12 r6 RHC Conditional appearance may be entered when there are objections raised in relation to the defectiveness of the writ, the irregularity of the writ and jurisdiction may apply to set aside the writ Now with only one type of appearance, there is no waiver and the defendant is at liberty to apply to set aside the writ Mode of Entering Appearance O12 r1 ROC: a defendant to an action begun by writ may enter an appearance in the action and defend the action by a solicitor or in person - If default of appearance, the defendant may lost the right to be heard by the court Function of appearance: 1. Enable the defendant to communicate his intention to defend or challenge the action against him 2. Prevent the judgment in default against him Completing the mode of appearance through memorandum of appearance which signed by D and serve on P O12r2 ROC: Memorandum of appearance shall be in Form 11 and both the memorandum of appearance and the copy thereof required for entering an appearance shall be signed by the solicitor by whom the defendant appears or, if the defendant appears in person, by the defendant *Follow all the rules stated under this order – (address served) O12r3 ROC: Procedure on receipt of memorandum O12r4 ROC: Time limited for appearing (a) Peninsular Malaysia: 14 days after service of the writ (b) Sabah & Sarawak: 14 days

(c) Out of jurisdiction: 21 days (O11r4, O10r2) CASE: Abdul Rahim Ponniah v Kulim Intensive Driving Centre SB ISSUE: Whether the delay on the part of the defendant to file the appearance and defence was justified HELD: A party intending to defend an action must firstly enter an appearance within the specified time frame. Failed would preclude from filling the appearance and defence except with the leave of the court under O12r5 (1). Effect of D enter into appearance 1. P is entitled to apply for summary judgment under O14r1 provided that P believe that D has no defence within 14 days (O14r2) Condition: P must serve statement of claim 2. P is not allowed to serve the judgment in default on appearance against D 3. Enable the defendant to communicate his intention to defend or challenge the action against him O12r5: Late Appearance (1) A defendant may not enter an appearance in an action after judgment has been entered therein except with the leave of the Court. CASE: Abdul Rahim Ponniah v Kulim Intensive Driving Centre SB (as above) Effect of non-appearance: A) Judgment in Default to Appearance (JIDA) When the writ is served on the Defendant, the Defendant must enter appearance within the time limit. If the defendant fails, Plaintiff may obtain JIDA. Judgment can be executed against Defendant. (Importance of appearance) When JIDA can be entered (Order 13 Rule 1 to 5) i.

O13R1 - Claim for liquidated sum. It must be capable of being ascertained. Where the claim by the Plaintiff is for a liquidated sum, and Defendant fails to enter an appearance within the time limit stipulated, then Plaintiff can enter final judgment for a sum not exceeding that claimed by the writ in respect of the demand and for costs.

ii. O13R2 - Claim for Unliquidated Sum. A sum which cannot be ascertained by precise mathematical calculation. Must be assessed first, and if the

Plaintiff's claim is for unliquidated damages and the Defendant fails to enter and appearance within the time limit, then the Plaintiff may enter interlocutory judgment against the Defendant for damages to be assessed and costs. iii. O13R3 - Claim in Detinue. Plaintiff's claim is in relation the wrongful detention of goods. iv. O13R4 - Claim for Possession of Immovable Property. Where Plaintiff is claiming to recover back his land or property and not claiming relief under Order 83, Rule 1. v.

O13R5 - Mixed claim. Mixtures of claim from Order 13, Rule 1 to Rule 4.

vi. O13R6 – Other claims will not subject to DJ since the awards are based on the discretion of courts (such as equitable remedies: specific performance, injunction, rectification)

-JIDA can be in term of final judgement or interlocutory judgement (temporary in nature where further steps need to be taken in order to finalise it) CASE: Lam Kong Co Ltd -JIDA cannot be entered where the Pf's claim is of equitable remedies. Procedure to enter JIDA a) It is an administrative procedure b) No need to appear before the Court/ appear before the judge to obtain order. c) 3 documents need to be filed at the Court Registry: i. Certificate of non-appearance in Form 12 - Order 13 Rule 7(1)(a) ii. Affidavit of service which proved service of the writ on the defendant in Form 135 or original copy of the writ endorsed by the Defendant's solicitor that he accepts service of writ on behalf of the defendant - Order 13 Rule 7(1)(b) iii. Two completed judgment forms duly stamped in Form 75 - Order 42 Rule 5 d) The judgment must be then be served on the Df. B) Default of defence: O19r2-r7

Rule 56 of the Legal Profession (Practice and Etiquette Rules) 1978 -Where a defendant is represented by a solicitor, No JIDA can be entered against Df unless 7 days’ notice is given to the Defendant's solicitor informing him of the Pf's intention to enter JIDA. Within 7 days, if Df fails to enter appearance, Pf can obtain JIDA. -only apply when both side are represented by solicitor. CASE: Sri Minal Construction Sdn Bhd v. Mobil Oil Malaysia Sdn Bhd PER James Foong J: Non-compliance with Rule 56 does not make the judgment irregular judgment. It is still a regular judgment and therefore cannot be set aside. Rule 56 is not a rule of procedure but rules of etiquette among lawyers conduct. Pf suffered no consequence. The lawyer may be subjected to disciplinary proceedings C) Setting Aside JIDA Order 13 Rule 8: gives a power to the court to set aside JIDA. CASE: Evans V Bartlam -Lord Arkin: The principle obviously is that the court still possesses the unfettered discretion to set it aside any judgment entered if it thinks fit. -The Court will see whether judgment is regular or irregular judgment. Irregular judgment If it is an irregular judgment obtained in non-compliance with the Rules, the JIDA can be set aside as of right with cost. Ex: enter JIDA when claim does not fall within Order 13 Rule 1 – 5. The action of the court a. may correct the irregularity b. may allow amendment of irregularity by O2r2 c. set aside the judgment Order2R2: Application to set aside for irregularity (1) An application to set aside any proceedings, any step taken in any proceedings or any document, judgment or order therein for non-compliance with these Rules shall not be allowed unless the application is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity and the non-compliance has occasioned a substantial miscarriage of justice or occasioned prejudice that cannot be cured either by amendment or an appropriate order for costs Order42R13: Time limit to set aside

The party intending to set aside or to vary such order or judgement must apply within 30 days to serve it on the party who has obtained the order or judgement after the receipt of order or judgement. CASE: Tuan Ahmed Abdul Rahman v Arab Malaysia Finance Bhd FACT: JIDA entered into for an amount which was excessive. Applied to set aside the irregular default judgment. HELD: It is an irregular default judgement which has been entered otherwise than in strict compliance with the rules or is entered as a result of some impropriety which is considered to be as serious as to render proceedings a nullity. Regular Judgment If it is a regular judgment, and the Df want to set aside, the Df has to show that he has ‘defence on the merit’ in the affidavit in support of the application where the Df has to raise an arguable and triable issue. A defence has merits if there is a prospect for you to succeed in defending the case base on the defence raised. If the Df failed, the judgment will be left as it is. CASE: PL Construction Sdn Bhd v Abdullah Bin Said [1989] 1 MLJ 60 HELD: The term ‘defence on the merits’ means a defence which discloses an arguable and triable issue. The question for the court to consider now is whether the draft statement of defence exhibited to Encik Ibrahim’s affidavit discloses a defence on the merits or an arguable or triable issue. CASE: Pengkalen Concrete Sdn bhd v Chow Mooi (Guarantor of Kin Hup Seng Construction) &Anor [2003] 3 MLJ 67 HELD: In setting aside the judgment in default, there must be a defence on the merits adduced before the court. Here, it was indisputable that the defendants had failed to produce a draft statement of defence. Without it, the court could only conclude that the defendants were definitely not serious in their attempts to challenge the plaintiff 3 conditions for court to accept long delay by D to make application: 1. No parties suffered from prejudice from the delay 2. If there is prejudice, P may get compensation in cost 3. If court let the stand/ refuse to set aside, it will cause an oppression to parties especially to D...